“Least restrictive means”? One way that SOPA could die in court

The Child Online Protection Act was struck down in part because it was not the …

SOPA Resistance Day is upon us, and politicians and lobbyists are doing what they do best—retreating from earlier positions. The Motion Picture Association of America says DNS filtering is "off the table." Ditto, declare SOPA supporters Patrick Leahy (D-VT) and Lamar Smith (R-TX). Leahy admits that he has "heard from a number of Vermonters" on the issue. We'll bet he has.

But given the content industry's determination to ramrod this law through Congress in some form, it is worth taking a look at how whatever gets passed might fare under a court challenge. That means reviewing earlier efforts to regulate content on the Internet, among them the thankfully extinct Child Online Protection Act.

Like SOPA, with its vague prescriptions against sites "dedicated to theft of US property" or that confirm "a high probability" of copyright infringement, the courts took a look at COPA and saw an overbroad legal mess that needed to be stopped, and fast. Here's how that decade-long legal debacle went, and why it is relevant to this controversy.

Precision needed

Congress passed COPA in 1998. It is often confused with the far milder Children's Online Privacy Protection Act (COPPA), which limits how much personal data websites can collect about children. In contrast, COPA was a censorship law, pure and simple, but one that its designers hoped would not meet the fate of the 1996 Communications Decency Act. Overwhelmingly enacted by Congress and signed by President Clinton, the CDA stipulated that anyone who "knowingly" used an interactive computer service to display to someone under 18 a message or image that depicted "sexual or excretory activities or organs" could receive a two-year vacation in the slammer, or a hefty fine.

The Supreme Court bumped off the CDA in record time. "We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech," Justice John Paul Stevens wrote for the court in 1997. "In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."

Stevens notably added: "That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve."

So the forces of moral panic went once more into the breach, and came up with the Child Online Protection Act a year later. The "widespread availability of the Internet presents opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control," the law preambled. Therefore, a "prohibition on the distribution of material harmful to minors, combined with legitimate defenses, is currently the most effective and least restrictive means by which to satisfy the compelling government interest."

That prohibition read as follows:

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

The legislation defined content "harmful to minors" as anything deemed "obscene" or that the "average person," applying "contemporary community standards," would find to be pandering to "the prurient interest" and lacked "serious literary, artistic, political, or scientific value for minors." Websites could find safe harbor from the law if they required credit card or digital verification access.

The least restrictive standard

COPA tied far more legal knots than the CDA. It placed its language framework within the Supreme Court's 1973 Miller versus California decision on obscenity, from which the "contemporary community standards" phrase came. And the law added a declaration insisting that it was the "least restrictive means" of solving the problem.

But no sooner did the legislation see the light of day, than a small battalion of publishers and civil liberties groups filed suit against it via the United States District Court for the Eastern District of Pennsylvania.

"Congress has enacted a broad censorship law," the plaintiffs noted, that would prohibit the online publication of crucial public documents or works of art. These could include the Kenneth Starr report on the Clinton-Lewinsky scandal, or a photograph by Robert Mapplethorpe. All that enforcement of the law against these works would require would be for some community to declare them "harmful to minors."

"The effect of the Act, like the CDA, is to restrict adults from communicating and receiving expression that is clearly protected by the Constitution," the advocates warned.

From the get-go, the case did not go well for the government. A judge for the Eastern District easily saw matters from the plaintiffs' perspective. COPA would deny access to legitimate content to adults who did not possess credit cards, and put serious interactive content behind verification walls, he noted.

"Evidence presented to this Court is likely to establish at trial that the implementation of credit card or adult verification screens in front of material that is harmful to minors may deter users from accessing such materials and that the loss of users of such material may affect the speakers' economic ability to provide such communications," Justice Lowell A. Reed wrote in a preliminary injunction against the law.

In addition, Reed challenged the legislation's insistence that it was the least burdensome approach to the problem. He invoked a crucial Supreme Court decision to bolster his argument—the "least restrictive means" standard outlined inElrod v. Burns (1973): "If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties."

It is "not apparent" to this court that the government can prove that COPA is the least restrictive means available for protecting minors from objectionable content on the 'Net, Reed concluded.

Will deter adults

From there, the case bounced to and from the Third Circuit Court of Appeals on appeals and remands. But the Third Circuit panel repeatedly agreed with the Eastern District. COPA was not "narrowly tailored," the judges declared. The law "will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial."

In 2004, the Supremes concurred that far less intrusive means, such as filters, existed to help parents deal with online pornography:

Under a filtering regime, childless adults may gain access to speech they have a right to see without having to identify themselves or provide their credit card information. Even adults with children may obtain access to the same speech on the same terms simply by turning off the filter on their home computers. Promoting filter use does not condemn as criminal any category of speech, and so the potential chilling effect is eliminated, or at least much diminished. Filters, moreover, may well be more effective than COPA. First, the record demonstrates that a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. That COPA does not prevent minors from accessing foreign harmful materials alone makes it possible that filtering software might be more effective in serving Congress' goals. COPA's effectiveness is likely to diminish even further if it is upheld, because providers of the materials covered by the statute simply can move their operations overseas.

Four years later, the high court rejected a final bid from the Bush administration to consider the virtues of the law. "Ten years of futility," ran our January 2009 headline. "COPA finally, truly dead."

Is SOPA like COPA?

Critics of any attempt to parallel SOPA with COPA will doubtless offer an apples-versus-oranges analogy. But there are three ways that the two bills mirror each other.

First, both laws clearly concern the regulation of speech. The specific context differs. Now-defunct COPA tackled obscenity. SOPA addresses copyright infringement. But Congress obviously had the speech rights of Web content service providers in mind when they placed safe harbor provisions into the Digital Millennium Copyright Act. These limit the infringement liability of interactive site providers if they clearly have not detected the infringing activity, received no direct financial benefit from it, or are making a good faith effort to responsively police their site. Without them, tens of thousands of speech-encouraging and job-creating social networking sites that do their best to hold the line of piracy would face punishing lawsuits from a content industry that has never accepted Internet competition in the first place.

Second, it is very difficult to see SOPA as "narrowly tailored" to addressing infringement questions. Drafts of the law don't just classify bad behavior; deploying vague language, they create whole categories of rogue websites. Consider this section—a site is "dedicated to theft of US property" if it:

is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates [various sections of US copyright law].

Or:

is taking, or has taken, deliberate actions to avoid confirming a high probability of the use of the U.S.-directed site to carry out acts that constitute a violation [of US copyright code].

Or:

operates the U.S.-directed site with the object of promoting, or has promoted, its use to carry out acts that constitute a violation.

"Primarily designed"? "Limited use other than"? Any site that encourages uploading or content sharing by its members could be classified as such. And who is going to decide the threshold that represents a "high probability" of infringing use? Most worrisome, will the "promoting, or has promoted" clause be used to go after search engines that simply recognize sites accused of piracy?

There is no narrow tailoring in this bill. Even if the DNS redirecting provisions of the proposed law are scotched, this language is about as broad and overreaching as it gets.

Finally, it is difficult to construe SOPA as the "least restrictive" way to tackle the piracy problem. For all its lambasting by the content industry, there is the DMCA, whose notice and takedown provisions are regularly used by countless content holders, and honored by sites like YouTube. The success of the process is obvious to anyone who has searched for a video on the site and found a copyright violation removal notice instead.

In addition, Senators and members of the House have proposed a far less restrictive means of addressing the content industry's concerns. Senator Ron Wyden (D-OR) and Rep. Daryl Issa's (R-CA) OPEN Act turns the piracy site problem over to the International Trade Commission. The ITC would investigate such sites and, if rights holders won the case, order credit card, payment companies, and ad networks to stop doing business with the venue.

Would the courts see SOPA in these terms? Would they see COPA in SOPA? It all depends on what (if anything) comes out of Congress, and the extent to which various legal venues would see the SOPA controversy as a free speech issue. But if they do, the lessons of COPA are as plain as day. Congress should stick to narrowly focused content regulation strategies that look for the least intrusive means for protecting rights holders.

To re-quote the court: "If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties." SOPA doesn't even come close to meeting that standard.

Lobbying should be against the law, and anyone who authors and/or supports such draconian and unconstitutional legislation should be put against a wall and shot.

I can't agree with this. Lobbying is an effective way to get your voice across. Don't forget, you can be part of a PAC and donate your money/time to influence government as well. Lobbyists are simply one means of PACs communicating their concerns to the government. I would just prefer that everything be more transparent.

Lobbying should be against the law, and anyone who authors and/or supports such draconian and unconstitutional legislation should be put against a wall and shot.

What's wrong with giving money and or things of value to elected officials in return for preferential treatment?

There are plenty of things wrong with how we do lobbying for sure, that doesn't mean that there are not people who geninunly are trying to make better laws. We need to fix our system but lets have a discussion about it. He's pissed cause they are writing laws that are too extreme, while saying that we should take lobbyist out and shoot them. Do you not see the humor in that?

Beside the idea that our politicians are paid for, I think another one of the central issues comes down to the problem of their understanding. Congress and the senate seem like they are taking infantile first steps towards addressing the issue of online Intellectual Property rights violations. Lacking an understanding of the various subsystems of the Internet, but realizing how easy it is for pirates to work around any restrictions they put in place, it's easy to see why they would prefer broad wording. Congress is facing down the sickening thought of learning what computers do and how they work in order to play a game of cat and mouse with pirates.

Lobbying should be against the law, and anyone who authors and/or supports such draconian and unconstitutional legislation should be put against a wall and shot.

What's wrong with giving money and or things of value to elected officials in return for preferential treatment?

I'm going to assume that you're being sarcastic, because otherwise the obvious answer is, "You end up with the American system of government, where laws are created to benefit whoever can pay for them."

Lobbying should be against the law, and anyone who authors and/or supports such draconian and unconstitutional legislation should be put against a wall and shot.

Let's not be stupid about this.

I agree; lobbying in and of itself isn't the issue. The problem is the money that goes with it.

What we need is mandatory public campaign financing. No campaign contributions, no politicians being unnecessarily beholden to moneyed interests.

Campaign contributions, both direct and in-kind, are already severely restricted. Most of the spending that is done in elections now is by independent third-parties. You can't easily crack down on spending on this kind of speech without gutting the First Amendment.

And yet this is just ONE way this can fall in court, even if passed, and even if Obama signs it.

How I really see it will fail? Someone will throw a letter at a site, under SOPA's "authority" and the site operator may comply with the letter of DMCA in regards and take down content, maybe even block a link to outright easily identified infringement, but will stop short of accepting additional responsibility for action under SOPA, actions that might include complete altering of how content is crawled/submitted/etc and, without judicial oversight, and say that the DMCA safe harbor is a conflicting law and protects them. The matter will be pressed, any action to takedown the site forcibly will be stayed by a court (especially if it's something big like Google or Facebook opposing, something that would cause more consumer harm and financial loss than allowing infringement to continue), and we'll see a counter suit by same suing the MAFIAA for abuse of due process, and attempts at having lawyers disbarred if they were party to sending legal notices not based in due process. See, in the USA, we CAN seize property, even shut down a business, without a trial first. But, it is based in constitutional law, requiring either a warrant, and/or due process, in order to happen. Due process, by ruling of the supreme court, requires oversight on behalf of comissioned legal authority. An independent firm asserting that law is not a dually recognized authority, and has no direct power to exert due process. This alone shoudl prevent any action under SOPA that does not come hand in hand with the signature of a judge, in which case, SOPA is nothing at all different from our existing laws and powers that can be extended by that same judge, making the law redundant entirely, and a hotbed for potential abuse.

Lobbying should be against the law, and anyone who authors and/or supports such draconian and unconstitutional legislation should be put against a wall and shot.

Let's not be stupid about this.

I agree; lobbying in and of itself isn't the issue. The problem is the money that goes with it.

What we need is mandatory public campaign financing. No campaign contributions, no politicians being unnecessarily beholden to moneyed interests.

Campaign contributions, both direct and in-kind, are already severely restricted. Most of the spending that is done in elections now is by independent third-parties. You can't easily crack down on spending on this kind of speech without gutting the First Amendment.

Well keeping corporate money out of election and not giving them a path to secretly donate (aka pac's) or calling them people with rights might be a start, and while I lean on the libertarian side of things I don't see any issue with a voucher type system or any sane system that limits how much you can donate. Some would call it limiting of free speech, I'd call it making every single persons vote count no matter how much they have to donate. Saying that campaign contributions are limited is about the single dumbest statement I've ever heard. Just go look at Colbert's stunningly accurate and funny skits about it. It's a ludicrous joke.

Saying that campaign contributions are limited is about the single dumbest statement I've ever heard. Just go look at Colbert's stunningly accurate and funny skits about it. It's a ludicrous joke.

You still aren't getting it. "Donations to third parties (like PACs)" ≠ "Campaign contributions." They are fundamantally different things. And donations to campaigns are actually, anything Colbert portrays to the contrary, tightly restricted. In fact, it is these tight restriction that has actually had the perverse effect of making independent expenditures more influential than the candidates' own campaigns. But unlike official campaign organizations, private parties have free speech. You can't possibly claim to be a libertarian while arguing that the government should be able to restrict how much you personally spend advocating libertarianism.

Well keeping corporate money out of election and not giving them a path to secretly donate (aka pac's) or calling them people with rights might be a start, and while I lean on the libertarian side of things I don't see any issue with a voucher type system or any sane system that limits how much you can donate. Some would call it limiting of free speech, I'd call it making every single persons vote count no matter how much they have to donate. Saying that campaign contributions are limited is about the single dumbest statement I've ever heard. Just go look at Colbert's stunningly accurate and funny skits about it. It's a ludicrous joke.

Should you be allowed to put a sign on your lawn advertising some fun product that you enjoy using? What if the sign is instead about some particular candidate or policy? What about a billboard in your back yard, can you put it up? Can you pay for a billboard in a public place, with your own money, to advertise for something? Why is it different if it's about public policy than if it's about consumer products? Shouldn't I be allowed to purchase a billboard to say whatever I want to (barring libel, and other such things)? What about TV commercials? Why can't I pay for a TV commercial to say whatever I want to say?

Regulating this kind of thing is impossible without slaughtering the first amendment, as pusher robot said. Much better to encourage voters to be educated when they vote, so that they aren't so easily swayed by lots of money.

Just finished my e-mail to Leahy and got off the phone with his office. As a Vermonter, I'm pissed that he's even put this legislation forward. He now has my feelings on the topic (at least his staffer does) and knows that if he keeps supporting it, at least one person is going to run against him in 2016.

This article articulates really well how I've felt about the SOPA/PIPA bills since I first heard about them, "who gives a shit, it'll be struck down in court." Granted, it would be better if they don't pass (or even get voted on), but I've been having a really hard time getting particularly worked up over them.

iamwhoiam wrote:

and anyone who authors and/or supports such draconian and unconstitutional legislation should be put against a wall and shot.

Death is a horrible deterrent. It'd be much better to require any legislators that vote to pass blatently unconstitutional legislation to reimburse the .gov out of their own pockets for the costs of defending such legislation in the courts.

Saying that campaign contributions are limited is about the single dumbest statement I've ever heard. Just go look at Colbert's stunningly accurate and funny skits about it. It's a ludicrous joke.

You still aren't getting it. "Donations to third parties (like PACs)" ≠ "Campaign contributions." They are fundamantally different things. And donations to campaigns are actually, anything Colbert portrays to the contrary, tightly restricted. In fact, it is these tight restriction that has actually had the perverse effect of making independent expenditures more influential than the candidates' own campaigns. But unlike official campaign organizations, private parties have free speech. You can't possibly claim to be a libertarian while arguing that the government should be able to restrict how much you personally spend advocating libertarianism.

No you are choosing to ignore what actually is happening. Laws may be written that there is no coordination between these organization but when you have politicians openly telling pacs what to do (newt) or are actively raising money for those super pacs (all of the gop candidates but heres a link that came up with about 3 seconds of google searching http://www.latimes.com/news/politics/la ... 2421.story) then you see what is written in law clearly isn't being followed.

As for my personal affiliations who the hell are you to tell me I'm not a libertarian? Am I not a republican because I'm in support of gay marriage? When did it become that you have to agree with every single thing a party says to be a member? It is people like you who make things either 1 or 0 that are ruining our politics. While not in line with every single idea of the party it's certainly in line to want to see money being taken out of politics. This while not being a perfect solution is however a great solution that I would love to see. So while not being exactly what I would want, it's a very reasonable compromise, you know something that our republicrats are not capable of.

Yes a voucher or a limit on spending in elections would be a limit on personal freedom. It's one that I can live with, the same way I live with a speed limit or someone telling me I can't kill someone. This is how a democratic republic is suposed to work, not how it works now.

TL;DR: You are a fool if you actually believe that having the same lawyer run a pac and the campaing for the same candidate while simultaneously having that candidate raise money for your pac isn't the same thing.

Has anyone ever attacked these on the Constitutional point that all intellectual property rights are granted "To promote the progress of science and useful arts"?

To my way of thinking. if a law concerning IP does not promote the progress of science and useful arts than it should be unconstitutional, and I strongly believe that as a sum laws such as SOPA not only do not promote the progress of science and the useful arts, but will actively retard the progress of science and the useful arts. It seems to me that any small promotion of the creation of music, movies, or books that these laws might create is drastically offset by the restriction of the progress of sciences and useful arts created by a free internet.

In fact, has anyone ever looked to see if these laws do, in fact, actually lead to an increase in the progress of the sciences or useful arts? Has anyone EVER heard of a movie or song or book not being made because of piracy? Is there any proof whatsoever that any of these laws do actually work to "promote the progress" of anything? If not, then what is their legal standing?

The Constitution does not grant copyright to assure that authors and inventors make a profit; that is up to the holders to ensure by adopting a valid and competitive business strategy. Which the old guard media conglomerates are failing spectacularly at.

and anyone who authors and/or supports such draconian and unconstitutional legislation should be put against a wall and shot.

Death is a horrible deterrent. It'd be much better to require any legislators that vote to pass blatently unconstitutional legislation to reimburse the .gov out of their own pockets for the costs of defending such legislation in the courts.

Hear, hear! Not to mention the inordinate costs of investigating and enforcing all the #SOPA/#PIPA requests, the support staff, the office supplies, the office space, the janitors, the computer equipment, time, and resources, and on, and on... all coming out of my wallet in the form of taxes in an already strapped economy! Meanwhile, what percent of their income tax are these congressional dudes paying versus the rest of us? Ask Newt.

Well keeping corporate money out of election and not giving them a path to secretly donate (aka pac's) or calling them people with rights might be a start, and while I lean on the libertarian side of things I don't see any issue with a voucher type system or any sane system that limits how much you can donate. Some would call it limiting of free speech, I'd call it making every single persons vote count no matter how much they have to donate. Saying that campaign contributions are limited is about the single dumbest statement I've ever heard. Just go look at Colbert's stunningly accurate and funny skits about it. It's a ludicrous joke.

Should you be allowed to put a sign on your lawn advertising some fun product that you enjoy using? What if the sign is instead about some particular candidate or policy? What about a billboard in your back yard, can you put it up? Can you pay for a billboard in a public place, with your own money, to advertise for something? Why is it different if it's about public policy than if it's about consumer products? Shouldn't I be allowed to purchase a billboard to say whatever I want to (barring libel, and other such things)? What about TV commercials? Why can't I pay for a TV commercial to say whatever I want to say?

Regulating this kind of thing is impossible without slaughtering the first amendment, as pusher robot said. Much better to encourage voters to be educated when they vote, so that they aren't so easily swayed by lots of money.

First I agree with what your asking, a voucher or other similar type system would absolutely be an attack on free speech to a degree but so are toll's, so are drug laws, so are a lot of things. Most of them I believe to be unnecessary. But when it comes to allowing someones vote and voice to actually count I think this does make sense.

Look, I hate corporate bailouts, I hate our tax law, and I hate paying 30% of my check to a government who seems to do nothing but waste it, and I think most problems with wealth and being poor are there own stupid fault (spending 100k on a lib arts degree is stupid and a bad investment and you deserve it for doing little to no research). But saying rich people can spend as much as they want on elections in reality whether a law says so or not, taking away the power to be educated and the ability to have an unbiased view. We still have both liberal and conservative news organizations taking RP out of the picture and saying he's not a real contender when he's placing very high in polls and primaries. We see it every day. Climate change the majority of people think it at least exists and should be looked into but we have entire networks telling lies or half truths about it as if the majority of the population believes it.

So yea your right to ask those questions how far do you take it what effect will it have on the people. Do you arrest people for spending too much money on lawn advertisements? I'd say no but being able to spend 100k on national (w/e the actual cost is) air time. I'd say that is something that is pretty damn fair.

There is no perfect way to run a country with 300 million diverse people but it's the fairest solution I've seen to a pressing problem where 99% of the country doesn't have the financial means to have the equal voice of the 1%.

Edit: to clarify the first part I know that none of those things are free speech and are more personal freedoms. My point was that at one point it was a personal freedom to own a slave or beat your wife into submission. So maybe we can look at the personal freedom to have the super rich change the direction, candatites, and coverage of elections and make is so that

One more important point -- even if SOPA does go the way of COPA, there could be a lot of collateral damage in the meantime. Just look at Veoh, which ultimately prevailed under the DMCA. But Veoh was still destroyed by the legal fees.

So yea your right to ask those questions how far do you take it what effect will it have on the people. Do you arrest people for spending too much money on lawn advertisements? I'd say no but being able to spend 100k on national (w/e the actual cost is) air time. I'd say that is something that is pretty damn fair.

This also has a perverse effect. What if my property is right on a busy interstate and happens to be worth 100k in advertising? More to the point, what about media organizations that spend millions of dollars broadcasting their political views via news "reporting" and analysis? Your proposal gives them the most power of all.

The problem you seek to solve is actually a symptom. People are trying to influence the government with money because they find it to their economic benefit to do so. You will never find a way to prevent them from doing this, only ways to push the method of influence further and further under the rug.

The real problem is a government so powerful as to make it extremely worthwhile to influence. Cut down the amount of the economy directed by the government, reduce the ability of the government to help OR hurt people, undo the enending push to centrally manage every facet of our lives, and you will remove the economic motivation for spending vast sums to influence the government, leaving it again in the hands of committed idealogues.

EDIT:

Quote:

There is no perfect way to run a country with 300 million diverse people but it's the fairest solution I've seen to a pressing problem where 99% of the country doesn't have the financial means to have the equal voice of the 1%.

They still only have 1% of the votes. Frankly, if you can't trust the population to appropriately judge and represent their own interests at the ballot box regardless of what other people try to persuade them to do, you really can't have a democracy any more. At the point you decide that all those 99% voters are incompetent to vote, you have eliminated persuasion as a means of attaining power. What remains is naked force.

They still only have 1% of the votes. Frankly, if you can't trust the population to appropriately judge and represent their own interests at the ballot box regardless of what other people try to persuade them to do, you really can't have a democracy any more. At the point you decide that all those 99% voters are incompetent to vote, you have eliminated persuasion as a means of attaining power. What remains is naked force.

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Isn't the internet the great equalizer? No matter how much money anybody spends on an election, a person can still go to the internet and get whatever information they want. By saying that money alone buys votes, you are giving up on the ability of voters to make rational decisions, leaving any hope for a functioning democracy along with it. And you're denying a lot of hard evidence of people who spent way more money on elections but ended up losing.

At the same time, we have bills like SOPA and PIPA that clearly are influenced by special interests that run counter to the interests of the majority of Americans. I agree with you that there seems to be a problem in our political system that allows these kind of nasty bills to even be seriously considered when almost all American citizens would be opposed to them were they to discover their contents. But attempting the impossible with the regulation of third party political messages is not the answer. How do you even define when an advertisement is "political"?

So yea your right to ask those questions how far do you take it what effect will it have on the people. Do you arrest people for spending too much money on lawn advertisements? I'd say no but being able to spend 100k on national (w/e the actual cost is) air time. I'd say that is something that is pretty damn fair.

This also has a perverse effect. What if my property is right on a busy interstate and happens to be worth 100k in advertising? More to the point, what about media organizations that spend millions of dollars broadcasting their political views via news "reporting" and analysis? Your proposal gives them the most power of all.

The problem you seek to solve is actually a symptom. People are trying to influence the government with money because they find it to their economic benefit to do so. You will never find a way to prevent them from doing this, only ways to push the method of influence further and further under the rug.

The real problem is a government so powerful as to make it extremely worthwhile to influence. Cut down the amount of the economy directed by the government, reduce the ability of the government to help OR hurt people, undo the enending push to centrally manage every facet of our lives, and you will remove the economic motivation for spending vast sums to influence the government, leaving it again in the hands of committed idealogues.

EDIT:

Quote:

There is no perfect way to run a country with 300 million diverse people but it's the fairest solution I've seen to a pressing problem where 99% of the country doesn't have the financial means to have the equal voice of the 1%.

They still only have 1% of the votes. Frankly, if you can't trust the population to appropriately judge and represent their own interests at the ballot box regardless of what other people try to persuade them to do, you really can't have a democracy any more. At the point you decide that all those 99% voters are incompetent to vote, you have eliminated persuasion as a means of attaining power. What remains is naked force.

We railroaded this thread =/ but to continue lol...

I agree, with what your saying but I think your not looking at a practical way to solve the issue. How are we supposed to change laws that make it unfair when the people writing these laws are writing laws that make it easier for them to get elected, it's a pretty vicious circle and while I'd love to see us heading to a stronger state government and away from the federal I know this. It's not going to happen quickly and it's going to take consistency.

So I don't think treating the symptom is necessarily a bad thing, it might just fix things enough for us to actually look at the problem which isn't up for debate at the moment. How many people do you see arguing over the reduction in government, and I'm not talking about programs that don't actually reduce anything just spend it in a different way (looking at you repubs, at least democrats admit they want more control instead of lying about it)?

We have a congress who has a 10% approval rating and a historically 80-90% incumbent re-election rate, clearly something is wrong.

Also have you actually read how a voucher system would work? It basically goes that your first $50 of taxes or w/e number you set up goes to a fund that you control going to a candidate, even if you can't pay taxes you still get this amount of money to spend. The numbers work out that the candidates would probably receive more money then they do now but it would be spread out evenly instead of all coming from one group. Yes I know there are issues with this (I can see repubs screaming about being forced to spend $50 on elections), but does this really seem like a bad alternative to what we have now?

Because what we have now is only the illusion of choice. We have a 1 party system with 2 wings, do you think Ron Paul could actually run as a libertarian and win a presidency?

They still only have 1% of the votes. Frankly, if you can't trust the population to appropriately judge and represent their own interests at the ballot box regardless of what other people try to persuade them to do, you really can't have a democracy any more. At the point you decide that all those 99% voters are incompetent to vote, you have eliminated persuasion as a means of attaining power. What remains is naked force.

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Isn't the internet the great equalizer? No matter how much money anybody spends on an election, a person can still go to the internet and get whatever information they want. By saying that money alone buys votes, you are giving up on the ability of voters to make rational decisions, leaving any hope for a functioning democracy along with it. And you're denying a lot of hard evidence of people who spent way more money on elections but ended up losing.

At the same time, we have bills like SOPA and PIPA that clearly are influenced by special interests that run counter to the interests of the majority of Americans. I agree with you that there seems to be a problem in our political system that allows these kind of nasty bills to even be seriously considered when almost all American citizens would be opposed to them were they to discover their contents. But attempting the impossible with the regulation of third party political messages is not the answer. How do you even define when an advertisement is "political"?

To answer the last part first,I think that is the courts job, to define what is and what isn't political, as it always has been. One candidate sees that something fishy is going on and brings it there. If the candidate is is found guilty there are consequences, most of which I would hope is bad press. I'm not saying this is the only solution but I think that could be made to work with a few smart people trying to fix the situation.

As for the internet being the great equalizer that's great and all and to a degree you are correct but do you think that one mans voice in a stadium is going to be heard? This is personally why I like the voucher system even with all the issues mentioned. You have $50 of vouchers to spend, if you like a message or candidate you think you want to support you can do that. If enough people agree then the message becomes more visible allowing it to rise to the top of that mess we call the internet and mass media lol. What we have right now is a minuscule portion of the population choosing who will be the list of "allowed" nominations and no one who actually thinks differently then the gop or democrats is allowed to even be considered.

As for the internet being the great equalizer that's great and all and to a degree you are correct but do you think that one mans voice in a stadium is going to be heard? This is personally why I like the voucher system even with all the issues mentioned. You have $50 of vouchers to spend, if you like a message or candidate you think you want to support you can do that. If enough people agree then the message becomes more visible allowing it to rise to the top of that mess we call the internet and mass media lol.

I'm sorry, this just makes no sense at all. Your $50 still represents only 1/300,000,000th of the collective voice. The difference is in a free system, you can raise your voice if you care more about an issue and it's worth it to you to do so. In your system, you can't. You voice is permanently marginalized to 1/300,000,000.

Moreover, you can't so easily dodge the question of what is "political speech." (Especially when you claim to be the one proposing "practical" solutions.) Suppose I want to pool my funds with some other people to promote the following messages through paid advertisements. Please indicate which are not political:

- Vote for Candidate X.- I personally support Candidate X.- Do not vote for Candidate Y.- Support Issue X.- I personally support Issue X.- Do not support Issue Y.- Support group Z (who happens to support Candidate X.)- Support group Z (who happens to support Issue X.)- Support group Z (whose members strongly tend to support Candidate X.)- Here are some interesting facts about Candidate X.- Here are some interesting facts about Issue X.- Here are some interesting facts about Group Z (who happens to support Candidate X.)- Purchase this product from Company Z (who happens to support Candidate X.)- Purchase this product from Company Z (who happens to support Issue X.)- Purchase this product from Company Z (who happens to support Group Z (who happens to support Candidate X.))

How would OPEN stop me from naming a movie file some random garbage, uploading it to megaupload or ad.fly or something for others to download it? Disclaimer: I have no clue how to upload copyright crap for others to dl it, so if that's not what they do, then insert a valid website in the "something" portion.

How does OPEN stop copyright violation other than assuming cutting funds would stop the operation?

Quote:

The ITC would investigate such sites and, if rights holders won the case, order credit card, payment companies, and ad networks to stop doing business with the venue.

This doesn't stop the venue itself, it just cuts funding. (I'm thinking more in terms of movie/music piracy, as I would expect counterfeit product sites would actually be affected by the cutting of funds.) If I were to use your examples about COPA and CDA, I would just venture to say killing the two, did not actually help with the regulation of porn distrubution to minors. Filters can be avoided, I know my brother used to get around his, so yeah, not to effective.

Flame away if needed. I've only just stepped into this pile of shit, so it's still fresh for me.

How would OPEN stop me from naming a movie file some random garbage, uploading it to megaupload or ad.fly or something for others to download it? Disclaimer: I have no clue how to upload copyright crap for others to dl it, so if that's not what they do, then insert a valid website in the "something" portion.

How does OPEN stop copyright violation other than assuming cutting funds would stop the operation?

Quote:

The ITC would investigate such sites and, if rights holders won the case, order credit card, payment companies, and ad networks to stop doing business with the venue.

This doesn't stop the venue itself, it just cuts funding. (I'm thinking more in terms of movie/music piracy, as I would expect counterfeit product sites would actually be affected by the cutting of funds.) If I were to use your examples about COPA and CDA, I would just venture to say killing the two, did not actually help with the regulation of porn distrubution to minors. Filters can be avoided, I know my brother used to get around his, so yeah, not to effective.

Flame away if needed. I've only just stepped into this pile of shit, so it's still fresh for me.

The sites (venues) need hosting and bandwidth to stay online; these things are not free and need to be paid for. Generally, these types of sites get by on ad revenue. Cut off advertising revenue, cuts off funding for hosting and bandwidth, kills the site - for legitimate and illegitimate users of the site.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.